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This paper is written in accordance with the Cyberspace Law Seminar at the University of Iowa College of Law. In the spirit of realism all seminar participants were required to incorporate several elements into the finished product. First, each seminar student was assigned a country in Southeast Asia as the setting for a business proposal and legal analysis. Secondly, each student was to propose a "billion dollar bonanza"1 within that country for the class' fictional corporation, Global Telecom Media and Electronics (GTME). The next step was to identify some of the possible legal and public policy issues that might arise if GTME were to pursue the proposed billion dollar bonanza. The final goal of the work product for the seminar is exploration of some legal issues that are relevant to GTME if it decides to pursue the suggested billion dollar bonanza. This particular article discusses the legal issue "Does denying 'controversial/public issue advertisers' the opportunity to advertise on a publicly owned and operated communications network violate the Constitution of the United States?"2
The optic fiber Communications Network in Singapore presents an excellent opportunity for business success. However, despite the excellent opportunities that this Communications Network presents, there are some severe drawbacks due to the country and the Network itself. GTME's directors should be aware of some of the major advantages and disadvantages regarding operations in Singapore. First, the Singapore government seeks to maintain a socially closed system. Businesses that are expecting to have freedom akin to that allowed in Western countries will be unpleasantly surprised at the amount of government intrusion. The Department of Communication regularly censors movies, television and all 'public' communication for sex and violence. Also, businesses entering Singapore should be aware that because of the large gap in social mores between its people and western cultures, the government of Singapore mistrusts western businesses and observes them scrupulously. Despite the fact that Singapore has a very activist government that mistrusts Western businesses there is still a golden opportunity for GTME. The social and cultural adversity will simply make entrepreneurial adventures slightly more challenging. On the positive side, Singapore has proven to be interested in growing its economic strength and has been willing to work with Western Corporations on certain targeted and popular projects.
Singapore has one of the smallest land areas of any country in the world, but it is still an economic power on a world scale because of its strength in the transportation industry. The Port of Singapore, in tonnage of transactions, is the largest in Southeast Asia and one of the largest in the world. This port and the transportation industry that flows from it, are the cornerstone upon which Singapore's relatively diverse economy has been built. The port has proven to be particularly useful because of Singapore's prime location. As an island just off the southern tip of the Malay Peninsula, it occupies the perfect position to play gatekeeper to southeast Asia. Although Singapore is an island it is only separated from the mainland by the Johor Strait. This strait is crossed by a road and major railway which make crossing it a simple and regular affair. The economy in shipping and transportation provides the citizens of Singapore with the second highest per capita income of any Southeast Asian Country.
Investors will know that Singapore has what can be called a "free market" system, nevertheless the wise investor ought to recognize that the Singapore government is heavily entangled in the economy. National regulatory agencies direct national development goals and determine, with specificity, the economy's focus. It is so commonplace for the Singapore government to grant tax breaks to new enterprises (as incentives toward achieving targeted national trade goals) that it is almost impossible to survive as a business without them. Therefore, the most profitable venture in Singapore will be one that involves collaboration with the government in a nationally "targeted" industry so that government incentive payments will buttress GTME's financial statements.
In general the telecommunications industry is a "targeted" industry in Singapore. Specifically, the government has determined that the completion of the national fiber optics network is among the nation's highest priorities. Therefore, the opportunity to invest in the national fiber optics network should be acted upon swiftly.
Singapore's labor market is significantly more unionized than the other markets with which GTME is familiar, and operating a telecommunications network in Singapore will require the employment of this unionized labor force. Initially, this potential business stumbling block appears discouraging, however the high level of unionization does not present as large a difficulty as might be expected. Singapore protects business and labor interests together, and tightly regulates collective bargaining through policies like compulsory arbitration that is enforced as if it were a national "no strike rule." Neutrally established "fair" wages keep employees productive and content while keeping businesses running smoothly. Since GTME has little reason to fear being crippled by a strike it can concentrate on quality service and production.
The Singapore economy that grew up from a transportation base has vastly diversified -- it has successfully leapt into all sorts of new markets. A sizable portion of the Singapore economy comes from oil refining, its corporations also manufacture petroleum products, and its shipbuilding and repairing industries continue to grow. Moreover, new found expansion in manufacturing and a presence in the financial markets are driving the economic success of Singapore. It has a thriving stock exchange and commodities markets, its own national bank and many other powerful financial entities.
Singapore has a diverse culture but the factions are not segregated. This may be out of necessity considering the fact that nearly three and a half (3.5) million people share fifteen square miles. The island's customs and traditions are strongly influenced by China, other Asian countries and the West. The culture is most heavily influenced by the Chinese because Chinese descendants predominate in the population,3 but there are still many other large ethnic groups that contribute to the national culture. Because of the diversity of the people and their backgrounds, there are at least four officially recognized languages and six common and populous religions in Singapore.4
The governmental system of Singapore is based on the Westminster Model of parliamentary democracy. It has one head of state with a large administrative system, a unicameral legislature with fifty-eight members, and a Judiciary. The electorate for the head of state and legislature is every adult citizen who is registered to vote; voting is compulsory. Therefore, the legislative and administrative arms of the government are closely connected to politics, but the Judicial Branch is largely outside politics. This independent judicial branch is organized in a hierarchy for the purposes of appeal much like the American judicial system. Like the American system, all final determinations lie with a Supreme Court.
Singapore is involved in many large communications ventures. One of the technologies making grand leaps of progress in Singapore is the Very Small Aperture Terminal (VSAT) technology. This wireless communication technology expands quickly much like a cellular network because the required infrastructure can be built much more quickly.5 Moreover, not only can the hardware be built and installed more quickly, but VSAT also requires considerably less capital investment. VSAT is becoming a popular method for telephone, data, and facsimile communications, and it even has videoconferencing capabilities.6
Singapore's government wants to be heavily involved in the development of communication technology within its boarders so that it can maintain social control. This control is currently exhibited by the government in other areas of communications by the prohibition of the private ownership of satellite dishes, the routine censoring of films and television shows for sex and violence, the permits required for circulation of written publications, and the standing instruction given to foreign publications not to take sides on domestic issues.7
Singapore, along with some other growing powers in Asia, is leapfrogging ahead of the West with its telecommunications equipment and technologies. Namely, its use of digital switches, fiber-optic phone lines, and wireless networks have truly surpassed the west.8 Pyramid Research Inc., a Cambridge Massachusetts research firm, estimates that last year, Asian countries installed $23.7 billion of telecom equipment, most of it from foreign companies.9 These types of facts make the choice of Southeast Asia, and specifically Singapore an unbeatable investment opportunity for GTME. The desirability of getting involved with Singapore's communication technologies market is unquestionable.
Singapore One is being built with the broad and optimistic goal of making its services10 available to all of the island's people.11 Singapore sought to use the new network to strengthen existing businesses, attract new enterprise, and to educate and train school children, laborers, and business executives. Unfortunately, the Singapore government has been unable to get the full financing for the project. Nevertheless, Singapore has persisted with the development of the Network believing that once private investors have seen what it can do, they will be queuing up to be part of the success and profit, but thus far the only queue is one of impatient creditors.
Competition from rapidly expanding and more economical alternatives has not accommodated the projections for success. Very Small Aperture Terminal (VSAT) technology12 developer, Singapore Telecom, is gobbling up the communications market in Singapore. Their technology can be used to transmit voice, data, and video very effectively and at significantly less cost than the fiber network. The economical feature of this alternative is attracting more and more businesses every day. Furthermore, businesses for whom cost is not the most important issue who are looking to modernize their communication capabilities are taken by the quality of communication service that VSAT offers and are impressed by the speed; a full connection with multiple "lines" that might take Singapore One months or years can be achieved in a matter of days. Connecting to the Network takes more time, and involves much higher costs. In order that a business connect to the Singapore One network, miles of fiber optic cable may have to be laid down. This explains why, Singapore One has a waiting list of customers the last of which will not be fully connected until the end of 1998.13
The Singapore government strongly believes that the fiber optic network is superior to serve its long term goals. However, because of the costs associated with developing and building the fiber network, short sighted business investors and customers pass it over. Potential Singapore One customers rationally choose communications solutions that are quicker to set-up and less expensive in the short-run, but the Singapore government also notes that this rational behavior will result in a cheap, non-comprehensive, and piecemeal network in the long-run. Therefore, in order to alleviate this market failure regarding the Network, Singapore officials went out looking for solutions. Global Telecom, Media and Electronics, Inc. has come up with this solution.
Continuing to be involved with Singapore's national communications network project will prove to be a Multi-Billion Dollar Bonanza. Preliminary negotiations suggest that a deal that resembles the description below will be acceptable to the Singapore Government.
First, Global Telecom, Media and Electronics will purchase half of the existing network. After the purchase, GTME will be allowed to name the board of directors for the project. GTME will then cover the operating costs using revenues generated by the newly developed advertising technology. Once the Network is completed, the Singapore government has the option to buy out, in cash, GTME's half over the next five years. GTME will not be taxed by the Singapore government for five years, and GTME will be receive fifty percent of the Network's realized profits. If projections for usage and revenue are accurate this project should truly be a Billion Dollar Bonanza.
The current level of technology allows us to electronically insert ads into the communications as they pass through the network. For example, when customers are using the network for voice communication, a tone will inform the parties that they will soon be presented with a fifteen (15) second commercial message - the advertisers pay the phone bills.
Visual transmissions represent an even more bountiful variety of options for novel advertising. GTME's research labs have developed software that will allow the insertion of advertisements so that they lightly appear in the background of the primary visual image on a user's computer screen. GTME has already received an interest from McDonalds Corporation to display their Trademarked Golden Arches behind text pages being viewed by network customers. Present technology also allows the operator to insert short interruptive commercial messages much like what was described above with voice communications. The Network allows GTME to distribute these commercial messages in full motion video with digital quality. For other advertisers there will be less expensive options using simple teletype or other means of sending text messages across the bottom of users' computer screens and in the margins of facsimiles transmitted through the Network. GTME will also create and maintain several pages on the World Wide Web which will contain advertising opportunities, entertainment and information. The GTME research labs promise that many more innovations are on the near horizon.
The Singapore Government, through its department of Communication, is convinced that GTME's advertising is the solution that they need. This department appears ready and willing to work in conjunction with GTME, but it warns that it must be able to ensure that none of Singapore's social sensibilities will be offended by the advertising. Singapore privileges social principles highly above economic success. The Singapore government will condition any agreement with GTME upon one major qualification. Their Department of Communication will have complete non-reviewable veto power over any sort of socially questionable advertising. Furthermore, Singapore demands that any contract proposal must contain a specific provision calling the contract voidable (without damages) if the courts14 hold that GTME is required to advertise anything that the Singapore Department of Communication finds objectionable. This situation poses a very large risk to GTME.
There are many potential problems that might arise on this advertising venture. There will be questions that involve the intellectual property of the information that we hold and distribute through the Network. Additionally, there will likely be business challenges alleging unfair competition. GTME should expect to have battles with those who wish to end its monopoly control over the communications network industry. Numerous contracts will be made regarding the continuing construction of the Network as well as in regards to the advertising services that GTME, Inc. will provide. Statistically speaking, it is a certainty that some of these contracts will require the involvement of the courts following a breach, repudiation or other dispute. These are but a few of the potential problems that may crop up in Singapore, but, legally, the potential problems do not outweigh the potential profits.
The Biggest Potential Problem Involves Access by Advertisers
Because of the explicit exculpatory clause that Singapore is demanding in the Network operating agreement,15 the analysis of this report will focus on the likelihood that the United States Courts might demand access for an advertiser that the Singapore Department of Communication finds offensive. This is the most important legal issue because failure to accurately predict the holding on this issue will result in the failure of this entire collaborative project. A constitutional violation here will terminate all of GTME's contractual rights, and if this happened the losses would be so severe that the entire venture in Singapore would become a costly failure.
GTME, Inc. has already received notice that an activist physicians group called Physicians for Singapore Suicide (Herein, also PSS) plans to use the Network's communicative power to promote their services. An advisory opinion from the Singapore government indicates that the promotion of this suicide business is degrading to humanity and advertising of it will not be allowed on the Network.
At this point in the article, the basic legal/ public policy issue has been completely laid out. It is as follows: "What rights of access does a controversial public issue advertiser have to a publicly owned and operated telecommunications network?" The viability of the entire Singapore venture turns on this determination. If a court finds that a public issue advertiser is entitled to access to the Network then this business venture is not advisable. However, based upon the law in this area, GTME ought to be able to exclude PSS and other controversial public-issue advertisers from the network without violating the constitutional requirement of free speech.
First, for the analysis of this issue, it is important to mention that there are alternative fora that stand as potential bearers of the controversial advertisements. That is to say that Physicians for Singapore Suicide and other public issue advertisers can promote their message or their products many other ways. For example they can deliver their advertisements on paper, or electronically. PSS could establish a World Wide Web site through a service provider that does not have the restricted access that this national community network must have. Therefore, since this is not the only outlet for the expression of controversial views, exclusion cannot be seen as a violation of the right to free speech as protected by the First Amendment to the United States Constitution.
There are many ways that the law may be applied to this issue. They appear below in the order of importance of analysis. Because this is a new application of the law, the arguments can only be made by analogy to precedent.
Because broadcasters are issued a license from the government, and because of the vital role that broadcasters play in modern society, their activities are compared to a "state action." Whether being a broadcaster is or is not a state action remains partially unsettled. Some cases have determined that by merely assigning a license the state was not a "partner" or in a "symbiotic relationship" with the broadcasters,16 but Justices Brennan and Marshall disagree. They believe that the fairness doctrine cannot be relied upon as the only protection for free speech.17
Whether or not an action is a "state action" depends upon the outcome of a three part test. The first element of the state action test is "public function". That is, whether "the private entity has exercised powers that are traditionally the exclusive prerogative of the state."18 Courts have made attempts at clarifying this standard, but a large amount of uncertainty remains. For example, many of the things that are being done over the Network are things that, "traditionally", were done by nobody at all - they are entirely new activities. Furthermore, a lot of what will take place over the Network is little more than glorified phone service; phone service is not traditionally governmental in the United States. On the other hand, it seems as though a communication network should be considered a traditionally governmental enterprise because of analogies that can be drawn between it and other governmental entities like the postal service. The national government set-up the postal service as a governmental body, and similarly, the government set-up a nationally linked network of computers which developed into what is called the internet of which GTME's Network will be a part.
The second element requires a determination on whether "the private entity has acted with the help of or in concert with state officials."19 Based on this inquiry, there is a strong case to be made for the fact that GTME plays a state actor role in this venture. First, GTME has been enlisted by the Singapore government and granted exclusive license to provide the national communications network. Secondly, GTME is acting in joint ownership with the Singapore government and plans to split the profits from the Network's success with the Singapore government.
The final element in the state actor test is whether "the State has so far insinuated itself into a position of interdependence with . . . [the acting party] that it must be recognized as a joint participant in the challenged activity."20 Much of the analysis regarding this element will parallel the analysis in the previous element, and it certainly looks as if the joint ownership and shared profits remove any doubt about the outcome. Generally, it seems likely that the court will treat GTME, in its capacity as operator of the Network, a state actor.
Even if the Court were to determine that Singapore One is a state actor, and that therefore, the restrictions on the advertisements deserve strict scrutiny analysis the restrictions may still be permitted. There is not a right of access at all times and in all manners to every publicly owned place.
Challengers like PSS to the regulations will cite to holdings from the Court like the following which comes from Police Department v. Mosley.21 This holding states that, "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."
It is important to know if the Network is a public forum because if it is a public forum, then there is a much stronger case for a complaint from a controversial advertiser like PSS.
In the case of Adderley v. Florida, the Court decided that protesters at a county jail could be arrested as trespassers. The Court's analysis looked to the State's right to preserve their land for the primary purpose "to which it is lawfully dedicated . . . [A]ccess to all public places is not guaranteed whenever and however, and wherever they please." The State was to be treated no differently than a private owner of property in this situation.22
Adderley ought to provide some defense-shelter for Global Telecom, Media and Electronics, Inc. It seems to allow them to prevent groups like Physicians for Singapore Suicide from winning court ordered access to Singapore One. The Network has an important business purpose and designation, and is not intended as a location of social protest. The jail in Adderley had an important purpose and the court held that this disallowed protesters despite their recognized right to free speech. A court using the Adderley precedent will not find that PSS has a constitutional right to advertise over the Network. The Network, has an important purpose to which it is lawfully dedicated.
Other cases like23 also uphold a state actor's right to prevent access in time place and manner to a generally public forum. In the opinion of the Court, Justice Marshall noted that when the expression interferes with, or is "incompatible with the nature of a place or the pattern of its normal activities" regulations which determine the reasonable time place and manner restrictions will be upheld.24 The critical question for the Network's interest is whether PSS's manner of expression is incompatible with the normal activity of a particular 'place' at a particular time. This is a contestable point that will have to be litigated on the basis of the facts. GTME will argue that social demonstration and debate is undoubtedly incompatible with the normal business and educational uses that dominate the Network's activities every day.
The controlling requirement on state regulations is that they must be narrowly tailored to accomplish their legitimate state interest.25 The Grayned opinion elaborated on this principle by pointing out that the case of Lehman v. Shaker Heights26 held that when the state is engaged in a commercial venture it must only prove that its bar on any political or public issue advertising is not "arbitrary, capricious, or invidious."27
Because of the factual similarities between Lehman and the potential issue for GTME that is being discussed in this report, Lehman is likely to be the leading case for the Network's analysis. In Lehman, the city was operating a metro bus transportation system. In order to financially supplement the project, it was decided that they would sell advertising on cards that fit into slots on the sides of the busses. They did not accept any and all advertisers, however, because their operating rules forbid the acceptance of political or public issue advertising.
In Lehman, a 5-4 court held that a city that operates a rapid transit system does not violate the First Amendment or the Fourteenth Amendment by selling advertising space for cigarettes, banks, liquor, churches or public service groups on its vehicles while refusing to accept any political advertising on the behalf of candidates for political office or public issue advertising."28 The issue in the case was not about pure right of access, but one of equal access. The Court said that the city had not created a public forum, the mere fact that it was owned and operated by the city does not without more make it a purely public forum.29
Justice Douglas noted in his concurrence that a public transportation system is not like a public forum for free speech. "A bus is not a park, sidewalk, or other public place anymore than a highway," and to treat it as such would be to violate the captive audience that finds itself on it by necessity."30 The Lehman Court outlined many relevant pieces of law that are applicable to challenges of Singapore One's advertising restrictions.
The first basic principle of Lehman declares that the mere fact that an advertising medium is owned by the state does not mean that there is unlimited public access at any time and in any manner. Secondly, regarding the advertising question, it is not a question of equal versus unequal access. Rather access to the advertising space on the busses in Lehman as it is to the ad "space" on the Network is equal for all who qualify under the established content-neutral criteria. Excluding Physicians for Singapore Suicide and other public issue advertisers will not be a content based restriction. Exclusion will be as a direct result of a failure to meet the basic requirements necessary for access. PSS will not have grounds to claim that they have been excluded in an arbitrary, capricious, or invidious way.
In Lehman, the city feared that the long term business operation of the bus transit system would be jeopardized if they were to accept political or public issue advertisements. The Court held that it is reasonable for the transportation system directors to protect against chances of abuse, appearance of favoritism, and the risk of imposition upon a captive audience. Considering the economic and national interests in sustaining Singapore One until the entire island is connected and all of its goals are met, all three of the problems enumerated in Lehman are implicated in the Singapore One situation. There is a chance that the Network forums will be abused and eventually become overrun by the public issue advertising. This is a particularly important issue because of the eventual effects.
If controversial propaganda inundate the system there will be a chilling affect on the users. The first domino, if you will, is that some businesses follow through on their threats to leave the service to avoid the bother of these types of interruptive advertisements. Businesses will choose not to use the Singapore One Network because there are other media through which they can communicate without the potential disruption of public issue advertising. Once the number of users begins to decline, the legitimate advertisers will no longer want to pay as much per ad because each ad will be reaching less people. Eventually there will not be enough users to make up a desirable advertising market, and businesses will no longer run their commercial messages over the Network. Without advertising money to supplement user fee revenue, the start-up costs and operating expenses of the developing Network will overwhelm the project. With the bother of controversial public issue debate driving away the customer base GTME will be forced to retreat from huge losses and the Singapore Government will be left with billions of dollars of infrastructure that is owned with borrowed money that it cannot repay. Recall that the reason the Singapore government sought the assistance of GTME is because the costs of building the Network are too high without some source of supplemental income, but the development of this network is an important national goal that Singapore is not willing to passively abandon. This Network is an important piece of its national infrastructure needed for education, business training and communicating. To forego the opportunity to make the Network a success would be a serious failure to the people of Singapore. The appearance of favoritism might also be a problem as Physicians for Singapore Suicide's type of advertising would tend to look like a promotion of GTME's or Singapore's views unless every kind of public issue advertisement were allowed. Most importantly, there is certainly a captive audience with the Network. GTME's technology will be integrated with a necessary and important function of businesses and personal lives. Communication over the network is essential for the Network's customers the same way that the transportation was essential for the bus-riders in Lehman, and exposure to the advertising will be similarly unavoidable. The risk of imposition on a captive audience is much the same as it was in Lehman, and it is a sufficiently compelling reason to disqualify PSS and other public issue advertisers from advertising over the Network.
A challenger like PSS will likely point out that the majority in Lehman made a point to add that although the state actor has discretion to choose, its decisions must never be arbitrary, capricious, or invidious."31 Further, they will probably suggest that GTME Inc.'s exercise of discretion regarding Physicians for Singapore Suicide's access to the network is arbitrary, capricious, and invidious. GTME must argue that this is simply not the case. GTME's decision not to allow Political or Public Issue advertising to have access to the advertising space on the Network is based upon criteria specifically laid out and strictly observed. The criteria will equally disqualify and refuse the accommodations to all potentially controversial issues, including those issues with which GTME and the Singapore government agree.
In United States v. Kokinda32 the Court took a look at the use of a sidewalk that merely led from the parking area to the front door of a post office. The Court held that the mere physical characteristics of the property cannot dictate the forum analysis.33 In the plurality opinion drafted by Justice O'Connor, she pointed to what she called a "long-settled principle that government actions are subject to a lower level of First Amendment Scrutiny when the government is not acting as a lawmaker but rather as a proprietor."34 She pointed out that it is the public and government intention that the Postal Service be run like a business. This is the same intention as exists with respect to the Singapore Network. The intention is that the Network be operated as if it were a proprietorship and a business. The particular goals of operating the Network are set with a view to establishing and completely funding the national fiber optic network. Therefore, the analysis should require no stronger state interest than already exists.
The Network is at best a limited public forum. Access to it is limited by the means necessary to protect the goals to which it was originally dedicated by the Singapore government. There is no right on the part of controversial public issue advertisers, like Physicians for Singapore Suicide, to demand access to the Network's users or facilities for purposes inconsistent with the principles and goals of its foundation.
Were the Court hold that the Network must be treated as a Public Forum, the Advertisements of Physicians for Singapore Suicide Requires a Court Standard Below Strict Scrutiny Because the Ads are Merely Commercial Speech.
If the court adopts the contention that the Network is a public forum Physicians for Singapore Suicide could only get the protection of commercial speech. Commercial speech is best defined by the decision in Bolger v. Youngs.35 In this case, the Court took the opportunity to develop the meaning of "commercial speech." In Bolger, the Court was dealing with a situation where an advertisement for contraceptives, in the form of a drug store flyer, was being mailed to individuals who had not solicited them. The Court held in this case that the flyers were commercial speech even though they contained discussions of important public issues such as venereal diseases and family planning. Moreover, the court tests for commercial speech by looking to see if the speech does anything more than propose a transaction, and secondly the court examines the expression for the discussion of important public issues. Physicians for Singapore Suicide's advertisements are an invitation to a transaction that involves, only by necessity, information regarding important public issues such as determining the value of human life. On the basis of the holding in Bolger, a court should hold that a company like Physicians for Singapore Suicide is granted only the protection of commercial speech.
Public issue proponents like Physicians for Singapore Suicide will probably retort by claiming that the level of commercial speech's protection should not be described as "only." The opinion in the Bolger itself states that there is "substantial protection accorded to commercial speech." Secondly, PSS will argue that the trend of the Court is in favor of granting a high level of protection to commercial speech. In a key case regarding commercial speech, Valentine v. Chrestensen,36 the Court stated that the First Amendment imposed no "restraint on government as respects purely commercial advertising."37 Since then, however, this 'no protection' standard is no longer maintained by the Court. In Bigelow v. Virginia,38 the Court modified its Valentine opinion to grant some protection to commercial speech when the government attempts to restrict it. The Court upheld the right to advertise when the advertisement included "factual material of clear public interest."39 Building on that, the Court held in Virginia Pharmacy Board v. Virginia Consumer Council40 that commercial speech was, "not wholly outside the protection of the First and Fourteenth Amendments;" and that the fact that an advertiser's "interest is purely economic does not disqualify him from protection under the First and Fourteenth Amendments."41
These decisions might seem to indicate a trend by the Court towards protecting commercial speech at a very high level, however, this trend has halted and reversed its direction. The Valentine holding has been mellowed to the point that there is no authority for a demand of access from a party like PSS. Commercial speech regulations are surely permissible. Generally, the modern law on the protection of commercial speech has come out of Central Hudson v. Public Service Commission.42 In this case, the Court made it clear that it would not adhere to the logic of the Valentine decision. Indeed, the Court was set on guaranteeing some substantial protection against government coercion, but they halted the thrust towards pure strict scrutiny protection. The Court held that there is a limited measure of protection for commercial speech commensurate with its subordinate standing on the First Amendment scale.43
Central Hudson also developed a test to determine the constitutionality of a statutory restriction on speech. The first step in the test is to determine what level of protection the speech should have. There are certain categories that the law affords no First Amendment protection.44 For example, speech promoting illegal activity receives no protection. Public issue advertisers like Physicians for Singapore Suicide do not fall into any of the explicitly unprotected categories, but absent that, their advertisements are only commercial speech.45
The second step in the Central Hudson test requires that the Government identify its specific and substantial interest in promoting the regulation in question. The substantial interest that Global Telecom, Media and Electronics, Inc., and the Singapore government have in the prohibition of all forms of public issue advertising is clear. Allowing political or public issue advertisers to have access to Network's users will cause the users to flee to alternative technologies. This will lead to decreases in user fee revenues and in advertisers' willingness to pay. Eventually these downwardly spiraling effects will result in the failure of the Network project which will leave Singapore's goal of obtaining a first rate communication system unsatisfied.
Thirdly, under Central Hudson, the Court must determine whether the interests laid out in step two (above) are "directly advanced" by the regulation that was put in place. If the court determines that the goal is not directly advanced, then the regulation must be struck down. Convincing the court that the Network truly needs regulations limiting access by public issue advertisers may be the biggest challenge that Global Telecom, Media and Electronics, Inc. has to overcome. GTME must be certain of the facts regarding the opposition to public issue advertising by Singapore businesses. GTME will have to prove to a court that businesses will choose alternative communications and media technologies because of the intrusion caused by public issue advertisements.46
Because some of the alternative communications and media technologies can be installed with only a fraction of the infrastructure needed for the fiber optic Network, they can cover their costs and a reasonable profit without advertising sales. Singapore One was not going to be completed without the extra advertising revenue. Its only option, therefore, was to subject itself to freedom of expression issues. There is a national interest at stake in choosing to develop the Network over simply allowing 'the market' to choose the less expensive options. The other communications options are not as secure and reliable nor do they have all of the capabilities that the Singapore One Network has. In short any Network other than one built out of optic fiber would leave the state interest unsatisfied.
Finally, the Court must determine that the regulation, that it found to directly advance a substantial government interest in step three and two respectively, is the least restrictive means of doing so. There is no other way for this problem to be solved. Singapore has already overextended its credit on loans and has looked for other investors. GTME's enterprising advertising plan is the best and possibly the only way to solve Singapore One's financial problems. Secondly, there is no way for the advertising to allow public issue advertising and remain successful. And finally, there is no less restrictive means of keeping the users happy than to exclude all political and public issue advertising.
In the case of Metromedia Inc., v. San Diego47 the Court held that a ban on all commercial billboards would satisfy all aspects of the Central Hudson test even though the statute at issue in the case was struck down due to the restrictions that it coincidentally placed upon non-commercial speech. It seems as though the Metromedia Court determined that selection of content on billboards is not permissible if the speech involved is non-commercial, however the Court held that, "the city may distinguish between the relative value of different categories of commercial speech. . ."48 The Metromedia holding will be significant to the Network venture in Singapore only to the extent that there is a possibility that the Courts would find that the speech is non-commercial. This is not very likely given the clear precedential authority of Bolger.
Were the United States' court system to choose to analyze our network like the broadcast networks under the control of the Federal Communication Commission (FCC). The analysis would follow the line of broadcasting cases that began with Red Lion.49
Generally the current law on access to broadcasting capability is that there is no right to broadcast everything that one could speak or say elsewhere. To wit, though each individual has a constitutionally protected equal right to free speech, each individual does not have a constitutionally protected right to broadcast that speech. The Court has held that because of the limited number of broadcast frequencies and licenses, there is no First Amendment Right to broadcast, and thus the Federal Communication Commission (FCC) is appropriately placed as a regulatory agency.
The FCC was assigned the duty of regulation on behalf of the national government. In order to deal with the problematic situation that had developed with the media and access issues, the FCC developed the fairness doctrine.50 The fairness doctrine is the FCC's policy that was challenged in Red Lion.51 The challenge was regarding a situation where broadcasters were required to allow response time to previously broadcast editorials and such items that involved personal attacks. The Court noted that the role between the licensee (Red Lion and any broadcaster) and he who was refused license is a fiduciary one. Broadcasters' rights must be subordinate to the rights of the listeners and licensee-broadcasters must give the public listeners suitable access to ideas and information.
Red Lion attempted to persuade the Court that their First Amendment protection of speech allowed them to use their allotted frequency to continuously broadcast whatever they wanted to broadcast.52 They claimed that, if any man may refuse in his speech to give equal weight to his opponents then broadcasters ought be given a similar right.53 The Court rejected this and said that the limited media could not support an absolute right to free speech for the broadcasters. The Court claimed that the characteristic differences between broadcasting and the printed news media or spoken speech justified a different application of the First Amendment.54 In the end Red Lion loses out to the FCC's fairness doctrine, and moreover, the opinion was written as if the "fairness doctrine" is constitutionally required.
The Court has never been willing to make this type of decision regarding traditional print media. The fairness doctrine and other regulations of the FCC have been applied to the traditional print media differently. This print media analysis might have something to offer to Global Telecom, Media and Electronics, Inc. The first case in this line is Miami Herald v. Tornillo.55 In this case, the Court struck down as a violation of the First Amendment a Florida Statute that required newspapers to give free space for replies from political candidates that had been attacked in the regular columns. The Tornillo decision was juxtaposed to the what the Court had held Red Lion regarding requirement of response time in the broadcasting media. The Court said that the Florida Statute was in fact exacting a penalty for what was printed in terms of lost use of the space that the Miami Herald was required to give away.56 This is a bad thing. "There is almost an insurmountable barrier between the media and the government."57 Therefore the Courts ought not interfere with the Network and GTME because to do so would demolish this barrier.
A point on which the Physicians for Singapore Suicide and other public issue advertisers might try to distinguish the Tornillo analysis from the communications network situation is regarding monopoly. The Network is in a monopoly much like what exists in the telecommunication and broadcast arena situations. That monopoly or oligopoly problem which created the need for the fairness doctrine and its progeny in regulation is not present in the print media because there are numerous printers and even more numerous publications, but it is arguably present in communications networks.
The reason that printed material has been treated differently from other forms of mass communication is mainly because it is much less expensive so that the number of participants is limitless. Therefore, equal access can be achieved without special regulatory assistance. The large quantity of participants creates an inherent regulation in the print media itself. Readers compose a freely operating market in information and ideas. This "market" created by aggregate readership holds printed speech to the optimal standard.
The trend of the Court in the broadcast media cases has been to continue holding that it is the right of the public to have suitable access to social, political, aesthetic, moral, and other ideas and experiences. This is the crucial interest; the rights of the broadcaster are salutary. The rights of the listener may not be constitutionally abridged either by Congress or by the FCC.58
Global Telecom, Media and Electronics, Inc. will argue that the rights granted to it by the government of Singapore in the engineering and management contracts gave them complete discretion in operation of the Network. GTME, Inc. should base this position on the holding in the case of Columbia Broadcasting v. Democratic National Committee.59 The obligation to provide full and fair coverage of public issues does not require GTME, Inc. to accept editorial advertising60 and no private individual or group has the right to command the use of broadcast facilities. The Court held in Columbia that the public interest in providing access to the market place of ideas and experiences would not be served by requiring broadcasters to accept editorial advertisements.61 Global Telecom, Media and Electronics, Inc. will also be able to argue that even if, discriminating against Physicians for Singapore Suicide for access to the network advertising space violates its (PSS's) First Amendment Right to Free Expression it is its (GTME's) First Amendment Right to free speech that is of issue. GTME should not be forced by order of the court or other agency of government to promote the speech of the Physicians for Singapore Suicide or any other group.62
Physicians for Singapore Suicide or other public issue advertisers will likely contend that because the Network owes a duty to the public, it must not reject their presence in the Network on the basis of content, and that under the holding of Red Lion that they have a right to access the Network to promote their social service. The Court has held that where the public interest requires, the government may demand that a licensee63 "present . . . views which are representative of his community and which would otherwise be barred from the airwaves.64 It is GTME's fiduciary duty to provide Physicians for Singapore Suicide with access to the public.
Physicians for Singapore Suicide, for example, would probably stand on the claim that the exposure of the right to die issue is important to the interest of the pubic, and thus suppression of their access is in opposition to the public interest. To claim this would be to all but deny the fact that Columbia65 held that having exposure commensurate with the public interest is the foremost concern in determining whether broadcasters are required to sell commercial time to persons wishing to discuss controversial issues. Also, Physicians for Singapore Suicide might assert with support from the Columbia66 decision that it is the right of the people to be informed that is paramount. This public right is more important than the rights of the government or any broadcast licensee to say what it wants. The decision to deny a public issue advertiser access, and thereby inhibiting purely free speech on the grounds of public interest would be excused in only a limited amount of circumstances.67
Nevertheless, GTME should maintain that the public issue advertiser does not have the right to purchase air-time to broadcast its views on controversial issues.68 GTME should argue that as a licensee it is within its authority to refuse69 to allow the time for public issue advertising based upon what the it reasonably perceives to be the community standards. Applying this legal standard to the Network, it seems as if the right of the licensee is the stronger. This rule suggests that GTME would be within its rights to refuse access to the very limited amount of advertising space that it has to sell on the basis of its reasonable estimation of what the Singapore business customers and residential customers want to see.
In the case of Business Executives Move for Vietnam Peace70 six Justices agreed that First Amendment would not require the sale of a licensee's air-time to "responsible groups" even if state action was involved. The lower court which was reversed in Business Executives71 had held that a flat ban on the political public issue announcements is in violation of the First Amendment at least when other sorts of paid political announcements were being accepted. Under this decision, the Network will not be required to grant PSS or other public issue advertisers access to the available ad space and time slots because it has not accepted other paid political or public issue advertisements.
Congress stated that the right to have access to the media is very limited, if any right exists at all, and when balancing the competing interests involved, "[O]nly when the interests of the public are found to outweigh the private journalistic interests of the broadcasters will government power be asserted within the framework of the FCC."72 The court has held that the idea of unlimited right of access does not preserve the public interest. It was argued that the failure to grant unqualified and unlimited access would favor the expression of the rich at the expense of the poor. The argument posits that the affluent will simply buy up more and more time . . . maybe all of the available time; this would really limit the free speech of the poor. The Court noted that a system of unlimited access will allocate quantity of expression to the person who is willing and able to pay the most rather than focusing on the presentation of those ideas who the people want to see most. The wealthy might take up valuable time with "trivialities."73
The FCC's fairness doctrine was never intended for application to self-appointed editorial commentators who want to advertise. The fairness doctrine was not to be interpreted as a mandatory access to anyone and, "the Act stands as a firm congressional statement that broadcast licensees are not to be treated as common carriers, obliged to accept whatever is tendered by members of the public."74 Thus the arguments of the Business Executives were inappropriate as that is what they sought to achieve.75
Government may not restrict speech of some in order to increase the relative voice of others. This general principle does not apply to the broadcast media which poses unique problems justifying special regulations, and thus it might not be properly applied to a communications network either. Since the Singapore regulations are not content related and do not unfairly single out certain groups, they are appropriate just as the Court has upheld the Federal Communication Commission decisions with regards to advertising in other media.
These established rules of the Court may not hold up in Cyberspace however because some of the reasons for support in the established media might not be available in this new medium. For example, when the laws of electronic media were being drawn up, it is certain that they were developed by the Court in relative ignorance to the technology. And the same can be said for the new frontier of communications technology. Certainly, guidance can be found in the established law on free speech. However, the uniqueness of the Network may make some policies behind old free speech decisions to lose their persuasiveness.
The older speech decisions were based upon some assumptions that may not apply in the communication network setting. One thing from the broadcasting context that will not apply to the communications network analysis is the assumption that there are a finite number of frequencies. These natural limitations led to the conclusion that most people must be denied a broadcasting frequency. The Court held that because an absolute right of access to the airwaves is not feasible given the physical limitations of circumstances.76 This is why the government felt the need to control the allocation of the use of the airwaves. The regulation was needed to serve the public interest, and thus the licensing system was installed. Secondly, the current law maintains the principle that it is the right of the receiver and not the broadcaster that is paramount. This principle is dependent upon the assumption that everyone cannot possibly broadcast everything that they would choose to say, and this may not be the case regarding communication networks.
The analysis of the Court and the FCC has looked inward to the goals of the First Amendment's free speech clause. The Court believes that an important idea behind this piece of the Constitution is the free exchange of ideas. Thus the principle, that there ought to be at least a fair sampling of all important ideas, was derived and established as the goal of broadcast regulation.77
Physicians for Singapore Suicide and other public issue advertisers will argue that the Network does not have such severe capacity limitations to its advertising. Therefore, there is no need for a government agency to select who gets access and who is denied. Although there are a large amount of advertising options, spaces and times available every day on the Network. It must be the position of GTME, Inc. that the capacity of the Network is finite. Therefore, it is impossible for everyone to broadcast everything that they would like to say. Though the Singapore One network has a very large capacity it remains limited.78
The cooperative business venture of developing, building and operating a communications network with the government of Singapore ought to be a successful business action. The likelihood that the courts will demand that access be given to a controversial advertiser like PSS is minimal. The Court ought to find that the Network forum was created for a specific purpose and to serve a particular interest, which does not include a pulpit for preaching about controversial issues. It is the recommendation of this counsel that Global Telecom Media and Electronics, Inc. continue to pursue the merger with the Singapore One system.
1 "Billion dollar bonanza" is the catch-phrase used in this seminar for a business venture that is likely to net healthy returns for the class' fictional corporation, Global Telecom Media and Electronics (GTME).
2 The reader should note that it was necessary to fabricate some facts in order to pull all of the required elements of the Cyberspace Law Seminar into one cogent piece. Although most of the information herein is factually reliable it should not be considered reliable without a specific citation to another source. The legal analysis represents the best of this law student's ability. Moreover, even though the analysis portends to involve the Singapore government and suggests a conclusion about the law in Singapore, it is really much more relevant to the United States. Singapore is nothing more than a setting for the analysis in this paper and therefore, the legal conclusions that this student-author draws are directly applicable to corporations in the United States, but are not likely to be applicable to corporations in Singapore. The law that this paper examines is based on the free speech clause of the First Amendment to the United States Constitution.
3 See Encylopaedia Brittanica 1996 -- Southeast Asia p. 832 (explaining that the Chinese make up nearly seventy-five percent of the total population of Singapore).
4 See Encylopaedia Brittanica 1996 -- Southeast Asia p. 831 (enumerating the four languages of English, Mandarin, Malay, and Tamil).
5 The Asian Wall Street Journal, March 24, 1995, A great leap forward: Asia's telecommunications industry jumps into The 21st century., at S2
6 See Singapore Straits Times, June 21, 1995, Telecom's VSAT department signs on ten new customers.
7 The Asian Wall Street Journal, June 8, 1995, Singapore to Launch Cable TV But Will Censor Some Programs: An Asian Wall Street Journal Roundup.
8 The Asian Wall Street Journal, March 24, 1995, A great leap forward: Asia's telecommunications industry jumps into The 21st century.
9 Id. at S2.
10 See http://www.gov.sg:80/mincom/mincompr/dept.html (Singapore ONE is a national high-capacity network platform that will deliver a potentially unlimited range of multimedia services to the workplace, the home and the school. "The Singapore ONE is a part of the Government's IT2000 vision," said Minister for Communications Mah Bow Tan during the launch on 3 June 1996. (Last visited May 1997).
11 Id.
12 The Asian Wall Street Journal, March 24, 1995, A great leap forward: Asia's telecommunications industry jumps into The 21st century.
13 See http://www.gov.sg:80/mincom/mincompr/dept.html By 1998, Singapore ONE will be up and running as an operational pilot network. In the initial years, the government will be the anchor tenant, using the bandwidth to make government services available to the public. In time, Singapore ONE will take on a commercial life of its own as more applications and services ride on it, forming the critical mass which will lead to an explosive growth of activity on the network. Singapore ONE will be implemented in two overlapping phases. Phase 1 will start with the selective deployment of a pilot core broadband network. The pilot network will comprise several broadband ATM switches linked to offices, public places and homes via existing local access networks. By 1997, the following services will be piloted on Singapore ONE: Access to school curriculum materials from homes Access to the digital library from homes High speed Internet access from homes Commercial services for homes Virtual government services in public sites, each offering four or five services. For a start, 300 homes will pilot the various services on Singapore ONE. This could be scaled up to over 5,000 homes. -- Phase 2 will see the network grow in capacity as more switches and cables are added. More applications will come on-stream. Over the years, as cost declines, home connections may be upgraded to fibre or other advanced technologies to allow home users to take full advantage of the high bandwidth of Singapore ONE. Private sector activities will gradually become the main driving force for the network. (Last visited May 1997).
14 At Singapore's request, United States law will be the basis for resolution of any disputes that are encountered on its venture with the Singapore government.
15 See Supra text at page 13.
16 Columbia Broadcasting Company v. Democratic National Committee v. business EXECUTIVES' MOVE FOR VIETNAM PEACE 412 U.S. 94, 119 (1971).
17 Id. at 185-190.
18 Mark, v. BOROUGH of HATBORO, 51 F.3d 1137, 1142 (1995).
19 Id.
20 Id.
21 See, Police Department v. Mosley 408 U.S. 92 (1972).
22 Adderley v. Florida 385 U.S 39 (1966).
23 Grayned v. City of Rockford, 408 U.S. 104 (1972).
24 Grayned v. City of Rockford, 408 U.S. 104, 116-117(1972).
25 Grayned v. City of Rockford, 408 U.S. 104, 114-115(1972).
26 Lehman v. City of Shaker Heights, 418 U.S. 298 (1974). (City not violating the First Amendment or the Fourteenth Amendments by selling advertising space for cigarettes, banks, liquor, churches or public service groups on its vehicles while refusing to accept any political advertising on the behalf of candidates for political office or public issue advertising.)
27 Lehman v. City of Shaker Heights, 418 U.S. 298, 303-304 (1974).
28 Lehman v. City of Shaker Heights, 418 U.S. 298, 300-301 (1974).
29 Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974). But see, Metro Media, Inc. v. San Diego 453 U.S. 490 (Court invalidating laws restricting the display of billboards. On site commercial advertising is allowed, but non-commercial is not allowed. This rule was held to be unconstitutional. -- the city was not acting in a proprietary capacity.)
30 Lehman v. City of Shaker Heights, 418 U.S. 298, 306-307 (1974).
31 Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974).
32 United States v. Kokinda, 497 U.S. 720 (1990).
33 Id. at 727 (Court holding that physical attributes are not enough to denote forum).
34 Id. at 725.
35 See Bolger v. Youngs Drug Products Corp., 463 U.S 60. (1983).
36 Valentine v. CHRESTENSEN, 316 U.S. 52 (1942).
37 Valentine v. CHRESTENSEN, 316 U.S. 52, 54 (1942).
38 Bigelow v. Virginia, 421 U.S. 809 (1975).
39 Bigelow v. Virginia, 421 U.S. 809, 822 (1975).
40 VIRGINIA STATE BOARD OF PHARMACY v. VIRGINIA CITIZENS CONSUMER COUNCIL, INC., 425 U.S. 748 (1976).
41 Id. at 748.
42 Central Hudson Gas v. Public Service Comm'n 447 U.S. 557 (1980).
43 Id. at 589.
44 Among these categories of unprotected speech are obscenities, fraudulent statements, illegal activity, fighting words and other forms of speech for which there is nothing for society to gain from the free exchange.
45 See supra notes 31-33.
46 Since Global Telecom, Media and Electronics, Inc. knows this to be the case, a certifiable survey to that effect should be taken. Make sure that the survey shows that the people who would leave because of the public issue ads would not leave otherwise despite the slight intrusion from the other advertising over the network.
47 Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).
48 Id. at 514.
49 Red Lion Broadcasting Company v. Federal Communications Commission, 395 U.S. 367 (1969).
50 See, Columbia Broadcasting Company v. Democratic National Committee v. business EXECUTIVES' MOVE FOR VIETNAM PEACE 412 U.S. 94 (1973)(explaining the development of the Fairness Doctrine).
51 See Red Lion Broadcasting Company v. Federal Communications Commission, 395 U.S. 367 (1969).
52 Red Lion Broadcasting Company v. Federal Communications Commission, 395 U.S. 367 (1969).
53 Id. at 386 (explaining how no speaker is required to give equal weight to those arguments with which he does not agree).
54 Id. at 386 (Court explaining the differences between verbal speech, print and broadcasting media with regards to "free speech").
55 Miami Herald v. Tornillo, 418 U.S. 241 (1974).
56 Id. at 256.
57 Id. at 259.
58 Id. at 290. See also, 85 Harv. L. Rev. 689; 48 Geo. Wash. L. Rev. 974. But see, 85 Harv. L. Rev. 768; 37 G.W. L. Rev..
59 Columbia Broadcasting Company v. Democratic National Committee v. business EXECUTIVES' MOVE FOR VIETNAM PEACE, 412 U.S. 94 (1973).
60 The claim is that it is editorializing, rather than simple business advertising is because they represent a socially irresponsible group that believes that death with dignity means quick and without any discomfort. This position is one that is not accepted by the majority of people and thus their goal is in persuasion on an issue, and not advertising to bring in business and revenue per say. Global Telecom, Media and Electric Inc., and its partner the Government of Singapore have a vested interest in keeping this type of high temperature, controversial philosophical debate out of the scene. It might stand to lose many customers to alternative sources if required to bend over backwards for Physicians for Singapore Suicide.
61 See generally, 412 U.S. 94, 95 (1973).
62 PACIFIC GAS AND ELECTRIC COMPANY v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA, 475 U.S. 1, 17 (1986).
63 Remember that a license is a privilege granted from the government in the first place.
64 See Red Lion Broadcasting v. F.C.C., 395 U.S. 367, 389.
65 Columbia Broadcasting Company v. Democratic National Committee v. business EXECUTIVES' MOVE FOR VIETNAM PEACE, 412 U.S. 94 (1973).
66 Id.
67 National Broadcasting Company, Inc. v. United States, 319 U.S. 190, at 217-227 (1943).
68 Both decision were upheld by the Court with a 5-4 vote.
69 Columbia Broadcasting Company v. Democratic National Committee v. business EXECUTIVES' MOVE FOR VIETNAM PEACE, 412 U.S. 94 (1973).
70 In Re Complaint by BUSINESS EXECUTIVES MOVE FOR VIETNAM PEACE Concerning Fairness Doctrine Re Station WTOP, Washington, D.C, 25 FCC 2d. 242 (1970).
71 BUSINESS EXECUTIVES MOVE FOR VIETNAM PEACE v. F.C.C. 450 F.2d 642 (1971).
72 Columbia Broadcasting Company v. Democratic National Committee v. business EXECUTIVES' MOVE FOR VIETNAM PEACE 412 U.S. 94, 110 (1973).
73 Columbia Broadcasting Company v. Democratic National Committee v. business EXECUTIVES' MOVE FOR VIETNAM PEACE 412 U.S. 94, 110 (1973).
74 Columbia Broadcasting Company v. Democratic National Committee v. business EXECUTIVES' MOVE FOR VIETNAM PEACE 412 U.S. 94, 116 (1973).
75 See, F.C.C. v. W.N.C.N. 450 U.S. 582 (holding that the FCC may rely on market forces to promote diversity in radio entertainment formats).
76 Red Lion Broadcasting Co. v. F.C.C. 395 U.S. 367 (1969).
77 See NBC v. United States, 319 U.S. 190 (1943) (denying a station license on the basis of pubic interests is not the denial of free speech).
78 See http://www.gov.sg:80/mincom/mincompr/dept.html (Last visited May 1997).
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